Her Majesty the Queen v. G.L. [Indexed as: R. v. L. (G.)]

87 O.R. (3d) 683

Court of Appeal for Ontario,

MacPherson, Cronk and Gillese JJ.A.

July 27, 2007

Criminal law -- Sentencing -- Dangerous offenders -- Long- term offenders -- Crown appeal from dismissal of dangerous offender application -- Trial judge declaring accused to be long-term offender and imposing ten years' imprisonment followed by ten-year supervision order with very strict terms -- Trial judge relying on absence of prior periods of strict parole and proposing stringent conditions in supervision order to reduce risk to acceptable level -- Evidence indicating accused psychopath with extremely high likelihood of recidivism particularly against future domestic partners -- Lengthy history of substance abuse -- Evidence that accused's condition not amenable to treatment -- "Burn out" theory -- Evidence that psychopaths generally less violent after age 45 -- Trial judge not failing to apprehend that not certain that "burn out" applicable to particular offender nor failing to appreciate theory less applicable to domestic violence offenders -- Evidence that many of conditions of community supervision proposed by trial judge impossible to implement given existing resources -- Trial judge erring by ignoring evidence of unavailability of resources needed to manage accused's risk safely in community -- Protection of public paramount where evidence showing that can only safely manage accused's risk by imposing terms of supervision order similar in intensity of supervision and monitoring to those available in correctional facilities and dangerous offender provisions should be invoked -- Crown appeal allowed -- Long-term offender designation set aside and accused found to be dangerous offender.

Following the accused's conviction for assault with a weapon, assault, two counts of possession of a weapon (a baseball bat and a tire iron) for a purpose dangerous, forcible entry, uttering threats, break and enter and other offences, the Crown applied to have him declared a dangerous offender. The accused [page684] had been diagnosed as a psychopath and actuarial testing suggested that he had an extremely high likelihood of violently re-offending if released within the next ten years. The accused had a long-term substance abuse problem. He had a lengthy prior record that included ten crimes of violence, some against domestic partners. He had a history of controlling and manipulating his female domestic partners by threatening them or engaging in violent behaviour and supplying them with alcohol. The trial judge accepted the uncontradicted psychiatric evidence that the accused's risk of violently reoffending was extremely high, perhaps a virtual certainty, for the next ten years, that he posed an unacceptable risk to cause serious personal injury during that ten-year period, and that he would almost certainly reoffend violently if released into the community prior to age 45. The psychiatrist said that generally psychopaths and persons with antisocial personality disorders became less dangerous after the age of 45, after which their violent behaviour tends to "burn out". This is "somewhat" applicable to domestic violence offenders. However, because of the possible impact of the aging process on the accused's criminality, and because the evidence suggested that he had never previously been subject to strict conditions while on probation or parole, the trial judge concluded that a reasonable possibility existed of the eventual control of the accused's risk in the community, after he attained the age of 45. She therefore dismissed the dangerous offender application, declared the accused to be a long-term offender, sentenced him to ten years' imprisonment (with no credit for pre-trial custody), and imposed a long-term supervision order of ten years with very strict conditions. The Crown appealed the dismissal of the dangerous offender designation.

Held, the appeal should be allowed.

The trial judge understood that, in determining whether an offender should be declared to be a long-term offender rather than a dangerous offender, the issue is whether the risk posed by the accused upon his release can be reduced, not whether it can be eliminated. It does not have to be established that an offender will be "cured" through treatment or that his rehabilitation is assured. The evidence indicated that the accused's condition was not amenable to treatment. It was suggested that the accused's risk might decline after he turned 45, as, generally, the violent tendencies of offenders "burn out" after they reach their mid-40s. The trial judge understood that it was not certain that this accused's propensity towards violence would burn out and that burnout was somewhat less applicable in cases of domestic violence offenders. The trial judge relied upon the imposition of stringent conditions upon the offender's release from imprisonment as the key to managing his risk. Evidence at the hearing showed there were no resources to implement many of the proposed conditions, which were similar to the level of supervision and monitoring found in custodial facilities. The trial judge erred by declaring the accused a long-term offender in the absence of evidence that the resources needed to implement the supervision conditions were available. Where the determination that an offender's risk may be safely controlled in the community rests on adequate community supervision, rather than treatment, the availability of the resources necessary to implement such supervision effectively cannot be uncertain. It is not enough to hope or assume that the resources will be available in the future. They must be available at the time of sentencing in order to protect the public, which is the focus of the dangerous offender provisions. Moreover, the long-term offender regime is not intended to virtually replicate jail-like conditions in the community for offenders released from custody. Where restrictive conditions of the type proposed by the trial [page685] judge are necessary to control the risk of reoffending, the dangerous offender provisions of the Criminal Code, R.S.C. 1985, c. C-46 should be applied. The long-term offender designation should be quashed and the accused should be declared to be a dangerous offender.

APPEAL by the Crown from the long-term offender designation imposed by Nicholas J., [2004] O.J. No. 1242 (C.J.).

Cases referred to R. v. A.N., [2002] O.J. No. 5026, [2002] O.T.C. 1032, 104 C.R.R. (2d) 126 (S.C.J.); R. v. Johnson, [2003] 2 S.C.R. 357, [2003] S.C.J. No. 45, 230 D.L.R. (4th) 296, 308 N.R. 333, [2004] 2 W.W.R. 393, 177 C.C.C. (3d) 97, 2003 SCC 46, 19 B.C.L.R. (4th) 243, 13 C.R. (6th) 205; R. v. Nault (2002), 2002 44945 (ON CA), 59 O.R. (3d) 388, [2002] O.J. No. 2017 (C.A.), consd Other cases referred to R. v. Allen, [2007] O.J. No. 2226, 2007 ONCA 421; R. v. Grayer, [2007] O.J. No. 123, 219 O.A.C. 114, 215 C.C.C. (3d) 505, 2007 ONCA 13 (C.A.); R. v. Howell, [2006] O.J. No. 383, 68 W.C.B. (2d) 736 (C.A.); R. v. MacDougall, 1998 763 (SCC), [1998] 3 S.C.R. 45, [1998] S.C.J. No. 74, 168 Nfld. & P.E.I.R. 83, 165 D.L.R. (4th) 193, 231 N.R. 147, 517 A.P.R. 83, 56 C.R.R. (2d) 189, 128 C.C.C. (3d) 483, 19 C.R. (5th) 275; R. v. Makar, 2000 MBCA 69, [2000] M.J. No. 458, 150 Man. R. (2d) 283 (C.A.); R. v. McCallum, 2005 8674 (ON CA), [2005] O.J. No. 1178, 196 O.A.C. 101, 201 C.C.C. (3d) 541 (C.A.) [leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 145]; R. v. Mills, 1986 17 (SCC), [1986] 1 S.C.R. 863, [1986] S.C.J. No. 39, 16 O.A.C. 81, 29 D.L.R. (4th) 161, 21 C.R.R. 76, 26 C.C.C. (3d) 481, 52 C.R. (3d) 1; R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25, 134 N.R. 321, 8 C.R.R. (2d) 193, 71 C.C.C. (3d) 1, 12 C.R. (4th) 1; Singh v. Canada (Minister of Employment and Immigration), 1985 65 (SCC), [1985] 1 S.C.R. 177, [1985] S.C.J. No. 11, 17 D.L.R. (4th) 422, 58 N.R. 1, 14 C.R.R. 13, 12 Admin. L.R. 137 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 11(b) Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 134.1(2) [as am.], 135.1(2) [as am.] Criminal Code, R.S.C. 1985, c. C-46, ss. 718.2(d) [as am.], 752(1), 752.1(1) [as am.], 753(1) [as am.], 753.1

Jamie Klukach and Tracy Stapleton, for appellant. Michael Davies, for respondent.

The judgment of the court was delivered by

CRONK J.A.: --

I. Overview

[1] On March 3, 2004, Nicholas J. of the Ontario Court of Justice declared the respondent, G.L., a long-term offender and sentenced him to a ten-year term of imprisonment, without credit for two years and five months pre-trial custody, to be followed by a ten-year supervision order. A lifetime weapons prohibition was also imposed. The Crown appeals the long-term [page686] offender designation and seeks to have G.L. declared a dangerous offender and sentenced to an indeterminate sentence of imprisonment.

[2] G.L. suffers from an antisocial personality disorder, narcissistic personality traits and an alcohol abuse disorder. He has also been diagnosed as a psychopath, who has a history of controlling and manipulating his female domestic partners by threatening or engaging in violent behaviour and supplying them with alcohol or street drugs.

[3] In August 2002, G.L. was convicted of assault, assault with a weapon (a tire iron), possession of a weapon (a baseball bat) for a purpose dangerous to the public peace, forcible entry, possession of a weapon (a tire iron) for a purpose dangerous to the public peace, uttering threats, break and enter, and two counts of mischief in relation to incidents involving his former girlfriend, K.M., and her boyfriend, J.C., that occurred on October 7, 2001. These convictions constituted the predicate offences underlying the Crown's dangerous offender application. G.L.'s appeal from his convictions on the first three charges was dismissed by this court on April 11, 2007: [2007] O.J. No. 1467, 2007 ONCA 288.

[4] The trial judge concluded that G.L. meets the statutory criteria under the Criminal Code, R.S.C. 1985, c. C-46 for both dangerous offender and long-term offender designations. She accepted the uncontradicted psychiatric evidence at the dangerous offender hearing that: (i) G.L.'s risk of violently reoffending was "extremely high, and perhaps a virtual certainty, for the next 10 years"; (ii) he "poses an unacceptable risk to cause serious personal injury during that 10 year period"; and (iii) "he will almost certain[ly] recidivate violently if released to the community" prior to age 45.

[5] The psychiatric evidence further established that those persons most at risk of future violent offending by G.L. are vulnerable, needy, dependent females and that, with or without treatment, G.L. will not experience any fundamental change in his personality. To the contrary, he will continue to target vulnerable women as partners in the future. The trial judge termed G.L. "the worst partner abuser that I have seen in 13 years, where death has not resulted".

[6] However, because of the anticipated impact of the aging process on G.L.'s criminality, and because the evidence suggested that he had never previously been subject to strict conditions while on probation or parole, the trial judge concluded that a reasonable possibility of eventual control of G.L.'s risk in the community, after he attains the age of 45, exists. She therefore [page687] dismissed the Crown's dangerous offender application, declared G.L. to be a long-term offender, and imposed a long-term supervision order of ten years with strict conditions attached.

[7] The Crown argues that the trial judge erred by failing to declare G.L. a dangerous offender. It makes three principal submissions in support of this argument. First, it contends that the trial judge misinterpreted both the long-term offender provisions in the Code and the decision of the Supreme Court of Canada in R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, [2003] S.C.J. No. 45, 177 C.C.C. (3d) 97, by failing to impose an indeterminate sentence in the absence of evidence that G.L. could be cured or rehabilitated within a determinate period of time. Second, the Crown submits that the trial judge misapprehended the evidence of the likelihood of a reduction in G.L.'s risk of violent recidivism as a result of the aging process (the "burn-out" theory). Finally, the Crown maintains that the trial judge's designation of G.L. as a long-term offender is unsustainable because the evidence at the dangerous offender hearing demonstrated the impossibility of giving effect to many of the key supervisory conditions that the trial judge concluded were necessary to control G.L.'s risk in the community.

[8] For the following reasons, I would allow the appeal. In my opinion, in the circumstances of this case, the trial judge erred by declaring G.L. a long-term offender and imposing a determinate sentence in the absence of evidence either that G.L. could be meaningfully treated within a definite period of time, or that the resources needed to implement the supervision conditions that the trial judge concluded were necessary to eventually control G.L.'s risk in the community were available, so as to bring G.L.'s risk of future reoffending within tolerable limits.

II. Facts

(1) G.L.'s criminal history

[9] G.L. has a long history of violent criminal behaviour. His criminal record, dating from 1985, consists of 25 entries, at least ten of which involve crimes of violence against his domestic partners and others. Many of these offences involved the use or supply of alcohol or drugs.

[10] G.L. committed several serious acts of violence prior to the predicate offences. These included assault and uttering death threats against his then girlfriend in 1994 and 1995 and, approximately two years later, forcible entry into the apartment of his subsequent girlfriend, K.M., whom he threatened and detained for two hours until she escaped to a neighbour's apartment. [page688]

[11] In addition, in March 1998, G.L. physically, sexually and verbally assaulted K.M. after she refused to have sex with him. K.M. sustained various injuries, including two finger fractures, extensive bruising to her body, a welt or burn-like injury on about one-half of her back, and leg lacerations. When the police arrived, they observed G.L. curse at and kick K.M. An officer sustained a hand injury when he tried to intervene. G.L. was convicted of assault causing bodily harm, sexual assault, assault and assaulting a peace officer in respect of this incident. He was sentenced to 376 days' imprisonment and 18 months probation for these offences.

[12] On the same day that he was convicted for the March 1998 attack, G.L. again assaulted K.M., punching and kicking her repeatedly while wearing steel-toed construction boots. K.M.'s resulting injuries included extensive bruising, swelling of her face and scalp, and the rupture of an eardrum. G.L. was convicted of aggravated assault and attempting to obstruct justice and sentenced to three years' imprisonment in addition to four and one-half months' pre-trial custody in respect of this incident.

[13] By the time that G.L. was released from custody, K.M. was involved in a new relationship with J.C. G.L. would not accept this and persisted in attempts to resume a relationship with K.M. He committed the predicate offences within four months of his release from custody, while on parole. During the same period, he repeatedly breached the conditions of his parole that precluded contact with K.M. and the use of alcohol and drugs.

[14] The predicate offences were committed on October 7, 2001, when G.L. engaged in a series of violent acts against K.M. and J.C. During the afternoon, he attended at K.M.'s apartment unannounced, accompanied by others and armed with a baseball bat, and tried to force his way into the apartment. In the process, he threatened J.C., who was observing him through a peephole in the door of the apartment. Several hours later, K.M. discovered G.L. attempting to enter the front door of her apartment building. Against K.M.'s vigorous objections, G.L., in a state of rage, forced his way into the building. A struggle ensued as G.L. proceeded to K.M.'s apartment, pushing K.M. and pulling her hair enroute. G.L. then kicked, hit and swung a tire iron at K.M.'s apartment door. J.C., who was in the apartment, called the police. At some point before the police arrived, G.L. hit K.M. on the leg with the tire iron. He subsequently fled down the apartment stairs where the police ultimately apprehended him. [page689]

(2) Evidence at the dangerous offender hearing

(i) Psychiatric evidence

[15] At the dangerous offender hearing, evidence was led of an assessment of G.L. conducted at the Centre for Addiction and Mental Health ("CAMH") in Toronto under ss. 752(1) and 752.1(1) of the Code. The results of this assessment were detailed by Dr. Philip Klassen, a psychiatrist at CAMH, in a written report to the trial judge dated April 14, 2003, and in oral testimony at the hearing.

[16] Dr. Klassen indicated that G.L. satisfies all seven criteria for a diagnosis of antisocial personality disorder:

(1) Failure to conform to social norms with respect to lawful behaviour;

(2) Deceitfulness, as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure;

(3) Impulsivity, or a failure to plan ahead;

(4) Irritability and aggressiveness;

(5) Reckless disregard for safety of self or others;

(6) Consistent irresponsibility as indicated by repeated failure to sustain consistent work behaviour or honour financial obligations; and

(7) Lack of remorse, as indicated by being indifferent to, or rationalizing having hurt, mistreated, or stolen from another.

[17] In the CAMH report, Dr. Klassen stated:

[G.L.] has presented as glib and as having considerable verbal facility. He evidences a positive self-percept, and even presents as quite grandiose at times; this suggests that . . . [G.L.] likely has G.L. underlying motivation to engage in self-change. He has been duplicitous. There has been no substantial or sustained demonstration of remorse, a sense of guilt, or empathy; the best arbiter of same is engagement in behavioural change, and this has certainly been lacking. He has continued to engage in non-conforming behaviour, insofar as his performance on conditional release has been poor. His behavioural controls, in the absence of alcohol, do seem to have been much better than in the presence of alcohol; this gentleman presents as markedly volatile, when intoxicated. He has manifested a substantial failure to take responsibility for his behaviour, and he variously blames alcohol, his victims, his peers, the correctional system, the justice system, and the medical system, for his difficulties or failures. [page690]

I find particularly troubling the fact that this individual has demonstrated no substantial change in values or attitudes, even after having been described as performing very well in treatment; this suggests to me that [G.L.] . . . essentially engaged in programming to be able to learn the language, in the service of securing his release . . . this individual is likely, given his intelligence and his verbal skills, a capable manipulator of others' opinions.

[18] Dr. Klassen testified that G.L. presented "at very high risk of future violent recidivism". He scored 35, out of a possible score of 40, on the Psychopathy Checklist-Revisited ("PCL-R") test, which is used to measure risk of criminal recidivism. Dr. Klassen explained that "individuals with scores of 25 or greater are particularly problematic in terms of recidivism, and difficulties with response to community supervision and/or treatment". G.L.'s score of 35 places him at the 96th percentile for possible test response, indicating that of 100 randomly selected federal inmates, 95 would have lower scores than G.L.

[19] G.L. also scored 30 on the Violence Risk Appraisal Guide ("VRAG") test, which Dr. Klassen considers to be the best available actuarial tool concerning violent recidivism. With respect to this score, Dr. Klassen commented in the CAMH report:

This is an extremely high score, and is suggestive of a high likelihood of future violent behaviour; individuals in the reference or standardization sample with similar scores recidivated at rates of 100% over 7 years opportunity in the community. This score places Mr. G.L. on the 99th percentile with respect to the reference sample.

[E]ven a score of 22 on the VRAG is a high score, at the 95th percentile, and individuals with similar scores recidivated violently or sexually at a rate of 82% over 10 years opportunity in the community.

[20] Importantly, Dr. Klassen also confirmed in the CAMH report that"There is no treatment that has been shown to ameliorate the core or fundamental aspects of psychopathy." Dr. Klassen also indicated that some studies suggest that "individuals with high PCL-R scores in fact perform more poorly on release after receiving treatment, than had they not received treatment". In Dr. Klassen's view, if such individuals also possess verbal dexterity, as G.L. does, they have the ability to manipulate others into believing that they have achieved self-change when in fact genuine behaviour modification has not taken place. As a result, Dr. Klassen suggested, individuals of this type "may receive less intense community supervision".

[21] These uncontradicted aspects of Dr. Klassen's testimony confirm that G.L.'s condition is not amenable to treatment. Moreover, and of equal concern, G.L. does not appear to be committed to behavioural change. Both his history and his psychiatric [page691] profile suggest that he is adept at masking his continued disinterest and lack of progress in rehabilitation.

[22] Dr. Klassen concluded that G.L. is at high risk of violent recidivism for at least a decade. He has virtually no confidence that psychological treatment would yield any substantial behavioural change in G.L. There is no suggestion that G.L. would benefit from pharmacological treatment.

[23] Dr. Klassen also testified about the possibility that G.L.'s risk of violent recidivism would decline as he ages. He said that although older persons with high PCL-R scores retain their psychopathic values and attitudes as they age, they also lose their energy to offend. Importantly, however, Dr. Klassen cautioned that this "burn-out" theory may be less applicable to offenders, like G.L., who engage in relationship or domestic partner violence. In the CAMH report, Dr. Klassen expressed the following reservation:

[The burn-out theory] may be somewhat less applicable to individuals who engage fundamentally in domestic violence, as their targets for violence are readily available, and are more vulnerable.

[24] During his testimony at the dangerous offender hearing, Dr. Klassen elaborated:

Now, with respect to partner violence, I wouldn't expect, I'm not as confident with the partner violence issue as I am with for example the security guard or you know, violence in the community issue, but I think you would be in a better position, you would be closer to an acceptable level of aggressive behaviour, even unsupervised, if you got him sort of close[r] to 50 than now. You would be in better shape.

[25] In Dr. Klassen's view, G.L. might be designated a long- term offender and released into the community only under what he termed "strict and tight external controls". These controls, he suggested, should include supervised substance abuse treatment on a daily basis, likely in perpetuity; residence in a community correctional centre for a protracted period of time; severe consequences for any transgression by G.L. of the conditions of his release; and supervision of G.L. by probation and parole officials who are experienced with issues concerning psychopaths and who have the resources to "spot check" G.L. during both the day and evening.

[26] However, Dr. Klassen stressed that even the imposition of these kinds of strict controls "may not entirely prevent violence". Rather, he stated"any violent recidivism that does take place may be less serious than that which has taken place previously".

[27] Ultimately, Dr. Klassen offered the following opinion regarding the risk posed by G.L.: [page692]

I believe that [G.L.], from a purely psychiatric perspective, meets the threshold for Dangerous Offender sentencing. I would be prepared to endorse the notion of "reasonable possibility of eventual control of the risk in the community", if very substantial resources could be allotted to this individual's risk management in the future, and if a harm reduction approach is utilized, as opposed to a "zero tolerance" approach.

(ii) Other evidence

[28] The Crown also led evidence at the dangerous offender hearing about the resources available to supervise long-term offenders in the community and the practices and policies of the Correctional Service of Canada (the "CSC") and the Parole Board regarding such offenders upon release from custody. I will refer to this evidence in the course of discussing the issues in respect of which it is relevant.

[29] G.L. called no evidence at the dangerous offender hearing.

III. Trial Judge's Decision

[30] The trial judge summarized her conclusions regarding G.L. at paras. 233 and 250-51 of her reasons:

I accept Dr. Klassen's evidence that [G.L.] will not, in any meaningful way, invest in treatment. As he has never been subjected to strict conditions, but rather indulged, when on probation and on parole, it is difficult for me to conclude that strict conditions of parole and/or long-term supervision might not reduce his risk of re-offence.

[G.L.] meets the criteria for designation as a Dangerous Offender, as set out in s. 753(1)(a)(i)(ii)(iii) [of the Code]. The physical injuries sustained by [K.M.], and the psychological trauma of this incident, constitute serious personal injury as that term has been defined in recent cases. I have also concluded that the totality of the circumstances of the predicate offence, including the force and violence used during the attempted home invasion meet the test of brutality in [s.] 753(1)(a)(iii). He also meets the criteria for the Long-Term Offender designation referred to in [ss.] 753.1(1) & 753.1(2)(b)(i).

Dr. Klassen's evidence is that [G.L.]'s risk of violently re-offending is extremely high, and perhaps a virtual certainty, for the next 10 years. I conclude that he poses an unacceptable risk to cause serious personal injury during that 10 year period. The impact of the aging process on his criminality, as described by Klassen, is such that, after age 45, a reasonable possibility of control in the community exists. Therefore, I will exercise my discretion and not declare G.L. to be a Dangerous Offender. He will be declared a Long Term Offender, and this Court will impose a Long Term Supervision Order of 10 years.

IV. Issues

[31] There are three main issues on appeal: [page693]

(1) Did the trial judge misinterpret the long-term offender provisions in the Code and the decision of the Supreme Court of Canada in Johnson, supra, by failing to impose an indeterminate sentence in the absence of evidence that G.L. could be cured or rehabilitated within a determinate period of time?

(2) Did the trial judge misapprehend the evidence of the burn-out theory?

(3) Did the trial judge err by basing her disposition on conditions of supervision that were beyond her control and jurisdiction and that were crafted on the assumption that the resources necessary to supervise G.L. in the community will be available at the time of his release from custody?

V. Analysis

(1) Statutory provisions and Johnson

[32] There is no challenge before this court to the trial judge's finding that G.L. meets the statutory criteria for designation as a dangerous offender specified under ss. 753(1) (a)(i) to (iii) of the Code. Those sections provide:

753(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be a dangerous offender if it is satisfied

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or

(iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint[.][page694]

[33] In Johnson, supra, at para. 18, the Supreme Court of Canada held that even where such criteria are met, as in this case, a sentencing judge retains the discretion to designate a person a long-term offender and to impose a term of imprisonment of two years or more, followed by a community supervision order of up to ten years. Section 753.1(1) of the Code provides:

753.1 The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that

(a) it would be appropriate to impose a sentence of imprison-ment of two years or more for the offence for which the offender has been convicted;

(b) there is a substantial risk that the offender will reoffend; and

(c) there is a reasonable possibility of eventual control of the risk in the community.

[34] In addition, s. 753.1(2)(b)(i) states:

753.1(2) The court shall be satisfied that there is a substantial risk that the offender will reoffend if

(b) the offender

(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to other persons or inflicting severe psychological damage on the other persons . . .

[35] In this case, the trial judge held that G.L. met all the above-quoted criteria for designation as a long-term offender. The issue on this appeal is whether the trial judge was justified in concluding that the precondition for such a designation set out under s. 753.1(1)(c) was satisfied. In other words, the question is whether it was open to the trial judge to hold that "a reasonable possibility of eventual control of [G.L.'s] risk in the community" exists.

[36] The Crown argues that this central holding by the trial judge is unsustainable because there was no evidence at the dangerous offender hearing that G.L. was treatable or that he would "probably" be cured or rehabilitated within a fixed time. The trial judge's disposition, the Crown claims, undermines the basic purpose of the dangerous offender regime -- the protection of the public -- and "gamble[s] with the safety of the community". The Crown asserts that the trial judge misinterpreted the long-term offender provisions in the Code and [page695] Johnson, supra, when she stated at para. 249 of her reasons that Johnson "speaks to management, rather than elimination of the risk, and controlling the behaviour [of an offender] rather than eliminating it".

[37] I do not agree that the trial judge misinterpreted Johnson when she concluded that it confirmed a "harm reduction", rather than a "risk elimination", focus to the existing long-term offender provisions in the Code. However, for reasons that I will explain, in the circumstances of this case it is my opinion that the trial judge erred by imposing a determinate sentence in the absence of evidence either that G.L. could be meaningfully treated within a definite period of time, or that the resources needed to implement the supervision conditions that the trial judge concluded were necessary to eventually control G.L.'s risk in the community were available, so as to bring G.L.'s risk of future reoffending within tolerable limits.

[38] In Johnson, the Supreme Court of Canada held that if an offender's risk can be managed in the community, a sentencing judge cannot properly declare the offender a dangerous offender and sentence him or her to indeterminate detention. Justices Iacobucci and Arbour, writing for the court, stated at paras. 29 and 32:

The principles of sentencing thus dictate that a judge ought to impose an indeterminate sentence only in those instances in which there does not exist less restrictive means by which to protect the public adequately from the threat of harm, i.e., where a definite sentence or long-term offender designation are insufficient. The essential question to be determined, then, is whether the sentencing sanctions available pursuant to the long-term offender provisions are sufficient to reduce this threat to an acceptable level, despite the fact that the statutory criteria in s. 753(1) have been met.

If the public threat can be reduced to an acceptable level through either a determinate period of detention or a determinate period of detention followed by a long-term supervision order, a sentencing judge cannot properly declare an offender dangerous and sentence him or her to an indeterminate period of detention.

(Emphasis added)

Also see para. 40 of Johnson.

[39] I agree with the trial judge that these passages address the concept of risk reduction, rather than risk elimination, as embodied in the long-term offender provisions in the Code and in the traditional principles of sentencing. This is consistent with the plain language of s. 753.1(1)(c) of the Code, which focuses on the "control" of an offender's risk in the community. [page696] The use of the word "control" connotes the containment or management of risk, as opposed to the eradication of risk. Moreover, s. 753.1(1)(c) requires that there be a "reasonable possibility", rather than a certainty, of the eventual control of the risk posed by an offender.

[40] In Johnson, the Supreme Court also confirmed, at paras. 33-36, that prospective factors concerning an offender must be addressed on a dangerous offender application, including the possibility of eventual control of the offender's risk in the community. Necessarily, therefore, an offender's amenability to treatment and the prospects for the success of treatment in reducing or containing the offender's risk of reoffending are critical factors.

[41] In R. v. McCallum, 2005 8674 (ON CA), [2005] O.J. No. 1178, 201 C.C.C. (3d) 541 (C.A.), leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 145, this court stated at para. 47:

Case law from this court and from the British Columbia Court of Appeal under the former dangerous offender legislation and the amended provisions has held that in order to achieve the goal of protection of the public under the dangerous offender and long-term offender provisions, there must be evidence of treatability that is more than an expression of hope and that indicates that the specific offender can be treated within a definite period of time: R. v. Poutsoungas (1989), 48 C.C.C. (3d) 388 (Ont. C.A.); R. v. Higginbottom (2001), 2001 3989 (ON CA), 156 C.C.C. (3d) 178 (Ont. C.A.). In R. v. M.(J.S.) (2003), 2003 BCCA 66, 173 C.C.C. (3d) 75 (B.C.C.A.), the court stated that the basic purpose of the dangerous offender provision before the 1997 amendment was the protection of the public and that under the amended legislation, the test for achieving that goal is set out in s. 753.1(1)(c), namely, whether there is a reasonable possibility of control in the community of the risk of the offender re-offending. The court also noted that the French version of the section requires "une possibilité réelle", or a "real possibility", which may require an even higher degree of certainty in the evidence than the English version, a "reasonable possibility".

See also R. v. Grayer, 2007 ONCA 13, [2007] O.J. No. 123, 215 C.C.C. (3d) 505 (C.A.), at para. 70; R. v. Allen, [2007] O.J. No. 2226, 2007 ONCA 421 (C.A.), at para. 28.

[42] I do not read Johnson as displacing the principle that, to achieve the goal of protection of the public under the dangerous offender and long-term offender provisions in the Code, evidence of treatability that (i) is more than mere speculative hope, and (ii) indicates that the specific offender in question can be treated within an ascertainable time frame, is required. The requisite judicial inquiry on a dangerous offender application, mandated by Johnson, is concerned with whether the sentencing sanctions available under the long-term offender provisions of the Code are "sufficient to reduce [the offender's] threat to an acceptable level" (emphasis added). The determination of [page697] whether an offender's risk can be reduced to an "acceptable" level requires consideration of all factors, including treatability, that can bring about sufficient risk reduction to ensure protection of the public. This does not require a showing that an offender will be "cured" through treatment or that his or her rehabilitation may be assured. What it does require, however, is proof that the nature and severity of an offender's identified risk can be sufficiently contained in the community, a non-custodial setting, so as to protect the public.

[43] In this case, the evidence established, and the trial judge accepted, that G.L.'s condition is not amenable to treatment and, further, that G.L. himself is not committed to treatment. The trial judge held at para. 254 of her reasons"Treatment will not 'cure' him. As an intelligent pathological liar and psychopath, I am persuaded by Dr. Klassen that he will not meaningfully commit to treatment."

[44] In these circumstances, I agree with the Crown's submission that, in the absence of any evidence that G.L. can be treated, his violent recidivism is assured. It follows that unless other measures, i.e., adequate community supervision, are available to control G.L.'s risk in the community, it was an error for the trial judge to designate G.L. a long-term offender and to impose a determinate sentence. As I read her reasons, the trial judge's disposition was not based on G.L.'s treatment prospects. Rather, the trial judge concluded that G.L. can eventually be controlled safely in the community by preventing his release into the community for ten years and by imposing the maximum long-term supervision order permissible at law -- ten years -- subject to stringent conditions. I will address this critical finding by the trial judge later in these reasons.

(2) Burn-out theory

[45] The Crown next argues that the trial judge misapprehended Dr. Klassen's evidence of the burn-out theory and that this error led her to further err by concluding that G.L. will pose an acceptable risk by the time that he is 45 years of age or older. In essence, the Crown submits that due to her flawed appreciation of the evidence of the burn-out theory as potentially applicable to G.L., the trial judge underestimated the gravity and anticipated duration of G.L.'s risk to reoffend. I disagree.

[46] Dr. Klassen indicated that the reduction in recidivism to be expected on the aging of offenders like G.L. -- psychopaths or individuals who suffer from antisocial personality disorder -- "tends" to become evident by the fifth decade of life. As I [page698] have said, however, he warned that this phenomenon may be "somewhat less applicable" to individuals like G.L., who engage in domestic violence with readily available, vulnerable partners.

[47] The trial judge addressed Dr. Klassen's evidence of the risk posed by G.L., including his evidence of the burn-out theory, in several passages of her lengthy reasons. Her reasons indicate that she was clearly alive to, and understood, the nature of the theory described by Dr. Klassen, the qualifications placed by him on its possible application to an offender like G.L., and his opinion concerning the gravity and anticipated duration of the risk posed by G.L.

[48] At paras. 144, 147, 212, 221 and 223 of her reasons, the trial judge squarely addressed the expert evidence that told against the possibility that the risk posed by G.L. could be adequately controlled in the community upon his release from custody. Although she accepted Dr. Klassen's evidence that, for offenders like G.L., relationship or partner violence may be less likely with advancing age, she was also mindful of his admonition that, even in their forties or fifties, such offenders retain a potential for personal injury offences and that G.L., especially, could be expected upon release to again target vulnerable domestic partners.

[49] Accordingly, the trial judge understood the nature of the burn-out theory and took into account the uncertainties of when and to what extent it might apply to G.L. This included the possibility that given the type of violent conduct in which G.L. has previously engaged, the beneficial impact of burn-out might be reduced or rendered inapplicable in his case.

(3) Community supervision of G.L.

[50] The trial judge's decision to designate G.L. a long-term offender and to impose a determinate sentence was premised on the need to incapacitate G.L. in a custodial setting for ten years and thereafter, to seek to control his risk of reoffending by imposing the longest available period of community supervision on "the strictest possible terms". The trial judge put it this way at paras. 254-55 of her reasons:

The purpose of this sentencing is to incapacitate [G.L.] for the 10 year period during which, according to expert evidence, he will almost certain[ly] recidivate violently if released to the community. Treatment will not "cure" him. As an intelligent pathological liar and psychopath, I am persuaded by Dr. Klassen that he will not meaningfully commit to treatment.

The objective here is to control [G.L.] by means of a lengthy period of incarceration and a 10 year period of supervision in the community on the [page699] strictest possible terms. No sentence, short of a 10 year period of incarceration from this date, would justify the use of the discretion granted to me to not declare him a Dangerous Offender given that he meets all of the criteria for such a designation. Should any of the determinate sentences I am imposing be reviewed by an appellate court, I wish that to be known. [G.L.] has very narrowly escaped being declared a Dangerous Offender, due to my interpretation of the Supreme Court of Canada's ruling in Johnson in light of the evidence of Dr. Klassen. [G.L.] is and will remain a dangerous and violent man. Had I had the option of declaring him a Dangerous Offender and recommending that he [be] released after a ten year period, I would have done so. The evidence before me, from a few witnesses, reveals that, as a Dangerous Offender he might well remain incarcerated for a much longer period than that. As such, the application of the Long Term Offender provisions provide[s] a less restrictive sanction as per Johnson.

(Emphasis in original)

[51] It is apparent from these comments that the trial judge concluded that a reasonable possibility of eventual control of G.L.'s risk in the community could be afforded through stringent community monitoring measures rather than treatment. This court has recognized that, in a proper case, sufficient community supervision can satisfy the precondition to a long- term offender designation set out under s. 753.1(1)(c) of the Code. See for example, R. v. Howell, [2006] O.J. No. 383, 68 W.C.B. (2d) 736 (C.A.). In accordance with Johnson at paras. 29-30, the issue is whether the external monitoring controls proposed in a given case are available and sufficient to "reduce [the offender's] threat to an acceptable level".

[52] In this case, the Crown argues that because (i) the evidence at the dangerous offender hearing demonstrated "the impossibility of giving effect" to the conditions of supervision recommended by the trial judge, and (ii) the recommended conditions were beyond the trial judge's control and jurisdiction, the trial judge erred by relying on them to anchor her finding that there was a reasonable possibility of eventual control of G.L.'s risk in the community. Given the record in this case, I agree with the first submission for the following reasons.

[53] As pointed out by Dr. Klassen, the supervision conditions in issue require the dedication of "very substantial resources". The evidence at the dangerous offender hearing, however, established that many of the requisite resources are unavailable or unrealistic under present resourcing conditions.

[54] I do not propose to examine each of the conditions recommended by the trial judge in detail. The following examples illustrate that many of the key conditions recommended by her are either unrealistic or unlikely to ever attach to G.L.: [page700]

(i) Dr. Klassen suggested, and the trial judge recommended, that on his release from custody G.L. reside in a community correctional centre for a protracted period of time. However, s. 135.1(2) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 limits the period of an offender's residency in such a centre to 90 days. The evidence of Parole Board officials at the dangerous offender hearing indicated that although this 90-day residency period is renewable, it may only be extended on a limited, rather than an indefinite, basis. Moreover, such extensions are regarded by the Parole Board as "going out on a legal limb";

(ii) Dr. Klassen also emphasized, and the trial judge accepted, that community supervision of G.L. would likely be ineffective unless he was "severely consequenced" for any breach of the conditions of his long-term offender supervision order. However, the evidence before the trial judge established that the Parole Board has no jurisdiction to reincarcerate an offender for the breach of such an order. Rather, the Board is required to persuade the police to lay a breach charge against the offender under the Code. In practical terms, given the time and resources involved, parole officers are unlikely to seek such recourse for minor transgressions by an offender;

Moreover, the Community Residential Facility Standards governing parole officers require that where a breach of a long-term offender supervision order occurs, all feasible alternatives to maintain the offender in the community must be assessed "to the fullest extent possible". The trial judge herself recognized at paras. 236 and 239 of her reasons that this policy of "least restrictive measures" is inappropriate for G.L. and "totally insufficient to monitor and control [G.L.] behaviour in the community"; and

(iii) Dr. Klassen also urged that G.L. be supervised by probation and parole officers who are experienced with the supervision of psychopaths and who have the resources available to "spot check" G.L. throughout the day and evening. On the evidence before the trial judge, however, long-term offenders are monitored in the community by corrections personnel in the same manner as are regular offenders. No specialists are assigned to work with long- term offenders.

[55] Thus, on this record, the evidence of the resources available to supervise the reintegration into the community of long-term [page701] offenders did not support many of the critical monitoring conditions recommended by the trial judge. That these conditions were fundamental to her finding that G.L.'s risk eventually could be sufficiently controlled in the community after he turns 45 is evident from the following comments by the trial judge at para. 236 of her reasons:

It is my recommendation that each of the proposed special conditions, agreed to by [G.L.] and submitted by counsel be imposed. These are attached as Appendix E. I support all of Dr. Klassen's evidence and conclusions, as detailed in this decision, and recommend that they be adopted. A harm reduction model needs to be put in place to supervise [G.L.]. He will need a residency requirement upon release, preferably to Keele Center [a community correctional centre] or a place like it with 24 hour supervision. His significant substance abuse problem with alcohol and drugs needs to be vigilantly monitored and treated. He needs to be subject to frequent and random drug and alcohol testing. The consequences to him of any breaches should be swift and severe to prevent a relapse into serious violent behaviour which would greatly endanger the public and particularly women. His self reports should never be relied on due to his anti social personality traits . . . He needs to be supervised by an experienced and well trained case manager, in conjunction with a forensic psychologist or psychiatrists with knowledge of the behaviour patterns of psychopaths and pathological liars. He should report in person at a maximum level of supervision.

(Emphasis in original)

[56] In determining whether a reasonable possibility of the eventual control of an offender's risk in the community exists, conflict can arise between the inadequacy or unavailability of the resources necessary to implement stringent community supervision, on the one hand, and the need to ensure that an offender is not deprived of liberty -- if less restrictive sanctions are appropriate in the circumstances -- on the other hand: see for example, s. 718.2(d) of the Code and Johnson, supra, at para. 22. The following statement by the trial judge at para. 225 of her reasons indicates that she was acutely aware of the tension between these factors:

It is evident to me, from the evidence of [the Crown's witnesses from the CSC and the Parole Board], that the legislator did not foresee this onslaught of applications, which are, for the most part, resulting in offenders being declared long-term offenders. As a result, a question arises as to whether [G.L.] should be defaulted into Dangerous Offender status because there does not appear to be suitable resources allocated, as of now, for the management of such offenders through residential structured housing, frequent and random urinalysis, and other things of that nature which are costly but necessary to effect adequate supervision in the community.

(Emphasis added)

[57] The trial judge appears to have resolved this dilemma by proceeding on the assumption that the resources necessary to [page702] implement her recommended supervision conditions, although neither committed nor available at the time of the dangerous offender hearing, will be in place when G.L. is released from custody. In my view, with respect, the trial judge erred in so doing.

[58] The test under s. 753.1(1)(c) of the Code is whether "there is a reasonable possibility of eventual control of [an offender's] risk in the community" (emphasis added). Johnson confirms, at para. 29, that, at a dangerous offender hearing"the essential question to be determined . . . is whether the sentencing sanctions available pursuant to the long-term offender provisions are sufficient to reduce [the offender's] threat to an acceptable level" (emphasis added). These articulations of the relevant risk management inquiry contemplate the present, rather than the future, existence of measures sufficient to control risk.

[59] In my view, both s. 753.1(1)(c) of the Code and Johnson envisage that where the determination that an offender's risk may be safely controlled in the community rests, as it did here, on adequate community supervision, rather than treatment, the availability of the resources necessary to implement such supervision effectively cannot be uncertain. To hold otherwise would be speculative, thereby preventing any reliable assurance that unreasonable risks to public safety can be avoided.

[60] In this case, as I have detailed at para. 54 of these reasons, the record before the trial judge demonstrated that several of the key supervision conditions recommended by her are incapable of performance, as a result of the current law or the resourcing conditions applicable to long-term offenders. In these circumstances, in my view, the trial judge's conclusion that there is a reasonable possibility of eventual control of G.L.'s risk in the community, after he attains the age of 45, cannot stand.

[61] I would make two further observations. First, as I have said, the supervision controls recommended by the trial judge were described by Dr. Klassen as "unusual""stringent""severe" and "strict and tight". I agree. The recommended conditions called for almost 24-hour monitoring of G.L. in the community by officials expert in his type of disorders, coupled with G.L.'s residency in a controlled environment, for ten years. Even if the resources necessary to create such a lengthy offender-specific form of community supervision existed, a conclusion that I have already indicated is not supported by the evidence in this case, the overall form of supervision proposed comes close to replicating in the community the form of monitoring and supervision that the state provides in custodial settings. [page703]

[62] While I recognize that under s. 134.1(2) of the Corrections and Conditional Release Act, conditions of supervision may include those that are "reasonable and necessary in order to protect society", I do not believe that that statute or the long-term offender regime is intended to virtually replicate jail-like conditions in the community for offenders released from custody. Where restrictive conditions of this type, like those proposed by the trial judge in this case, are necessary to control the risk of reoffending by an offender, and to thereby protect the public, the dangerous offender provisions of the Code are engaged. In other words, protection of the public is paramount.

[63] Second, the issue of the impact of limited institutional resources on the criminal justice system has been considered by the courts in a number of contexts, most noteably in connection with the constitutional rights enshrined in ss. 7 and 11(b) of the Charter of Rights and Freedoms. In that context, the Supreme Court of Canada has held that while account must be taken of the difficulties in securing full adequate funding, personnel and facilities for the administration of criminal justice, this consideration cannot be used to denude of meaning the rights protected under the Charter. See for example, R. v. MacDougall, 1998 763 (SCC), [1998] 3 S.C.R. 45, [1998] S.C.J. No. 74; R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25, 71 C.C.C. (3d) 1; R. v. Mills, 1986 17 (SCC), [1986] 1 S.C.R. 863, [1986] S.C.J. No. 39, 26 C.C.C. (3d) 481; and Singh v. Canada (Minister of Employment and Immigration), 1985 65 (SCC), [1985] 1 S.C.R. 177, [1985] S.C.J. No. 11. Similarly, in my view, resourcing limitations cannot be used to render meaningless the long-term offender regime enacted by Parliament.

[64] In R. v. A.N., [2002] O.J. No. 5026, [2002] O.T.C. 1032 (S.C.J.), a case relied upon by G.L. in this proceeding, the court addressed the Charter implications of the failure to provide an adequate infrastructure for the supervision of long- term offenders. The court concluded that the provision of treatment programs and a reasonable infrastructure for the supervision of long-term offenders in the community is necessary to ensure that the dangerous offender provisions in the Code are compatible with Charter rights. At para. 199 of A.N., the trial judge stated"[T]he issue of whether an offender can be controlled in the community must be decided based on the assumption that reasonable resources for supervision and treatment will be available to support the long-term supervision order [imposed by the court]." [page704]

[65] In my view, A.N. is of limited assistance in this case. The trial judge's finding in A.N. that there was a reasonable possibility of eventually controlling the accused's risk in the community was based on evidence that treatment was available for him in the community through specific health care professionals and that programming and monitoring resources existed to implement some of the conditions of community supervision proposed for A.N. That is not this case.

[66] Moreover, A.N. was based in part on this court's decision in R. v. Nault (2002), 2002 44945 (ON CA), 59 O.R. (3d) 388, [2002] O.J. No. 2017 (C.A.). In Nault, this court was concerned with a sentencing judge's rejection of a joint submission for a conditional sentence based on the sentencing judge's own perception of a lack of resources in the community to supervise conditional sentences. This court reversed the sentencing judge's disposition on several grounds, including on the basis that, contrary to the sentencing judge's holding, the record in Nault established that sufficient community resources in fact existed to supervise the offender on a conditional sentence. In addition, this court commented at paras. 8 and 9:

Crown counsel had been clear that the Crown had seriously considered the situation of the accused before agreeing to recommend a sentence to be served in the community. If the Crown was not satisfied that appropriate resources were available to supervise or enforce such a sentence, the court is entitled to assume that the recommendation would not have been made.

In a situation where the sentencing judge is concerned about the available resources, the judge should ask counsel to advise the court of the proposed supervision plan, and if necessary, provide evidence that the proposed supervision will be in place.

(Emphasis added)

[67] In that context, the court went on in Nault to endorse the proposition, articulated by the Manitoba Court of Appeal in R. v. Makar, 2000 MBCA 69, [2000] M.J. No. 458, 150 Man. R. (2d) 283 (C.A.), that "it cannot be up to the will of any province to effectively preclude the imposition of conditional sentences by failing to provide sufficient supervisory resources".

[68] On my reading of it, Nault recognizes that the availability of resources sufficient to supervise or enforce a conditional sentence must be established to support the imposition of such a sentence. In other words, where the availability of the requisite resources is in doubt, evidence must be led that "the proposed supervision will be in place".

[69] In this case, we are concerned with the exercise by a trial judge of her discretion not to declare a person a dangerous [page705] offender notwithstanding that he satisfies the statutory criteria for such a designation. In contrast to the facts in A.N., effective treatment for G.L. is not an option. Moreover, the evidence at G.L.'s dangerous offender hearing established that the resources necessary to implement many of the core conditions of supervision recommended by the trial judge, on which eventual control of the risk posed by G.L. is dependent, are not available. There was no evidence before the trial judge that existing resourcing conditions will or are likely to change in the foreseeable future. Nor was there any evidence of an intention to amend or remove the legislative impediments to the implementation of some of the recommended conditions, i.e., s. 135.1(2) of the Corrections and Conditional Release Act.

[70] As I have indicated, the overriding purpose of the dangerous and long-term offender regimes is the protection of the public. Thus"real world" resourcing limitations cannot be ignored or minimized where to do so would endanger public safety. The court is required on a dangerous offender application to balance the liberty interests of an accused with the risk to public safety that will arise on the release of the accused into the community. That balancing exercise is informed by this fundamental principle: in a contest between an individual offender's interest in invoking the long-term offender provisions of the Code and the protection of the public, the latter must prevail. This accords, in my opinion, with the intention of Parliament as expressed in the dangerous and long-term offender provisions of the Code, and in the Corrections and Conditional Release Act.

VI. Disposition

[71] I conclude, therefore, that the long-term offender designation of G.L. cannot stand. As a result, the determinate sentence and long-term offender supervision order imposed by the trial judge must be set aside.

[72] As a result of that decision, the question arises whether a new dangerous offender hearing is required in the circumstances of this case. I conclude that it is not necessary. The trial judge held that G.L. satisfies the requisite statutory criteria for designation as a dangerous offender. That finding, which is supported by the evidentiary record, is not challenged by G.L. on this appeal. The trial judge undertook a comprehensive analysis of the sentencing factors relevant to G.L., fully considered the criteria set out in the long-term offender provisions, and made numerous findings of fact. On her own analysis, she observed that G.L. "very narrowly escaped being declared a Dangerous Offender". [page706]

[73] Accordingly, for the reasons given, I would allow the appeal, declare that G.L. is not a long-term offender, quash the long-term offender supervision order made by the trial judge, and declare that G.L. is a dangerous offender.

Appeal allowed.